INKOVEMA Podcast „Well through time“
#184 – Conflict anticipatory agreements
A conversation about mediation clauses
Mediation clauses – Part 1
In conversation with Dr Jörg Schneider-Brodtmann
Jörg Schneider-Brodtmann: Lawyer at Menold Bezler in Stuttgart and certified mediator. WirtschaftsWoche 34/2019 described the negotiation expert as one of the most renowned lawyers for IT law (co-author of the IT law commentary published by Dr Otto Schmidt KG), who has been advocating the benefits of mediation for years, even in conflict-prone, complex contractual relationships.
Well through time.
The podcast about mediation, conflict coaching and organisational consulting.
Contents – Introduction to mediation clauses
Basic idea and reason for mediation clauses
Mediation clauses are an anticipatory and preventative measure to deal with future conflicts in a structured and cooperative manner. They are often integrated into contracts between project partners, spouses or other contractual partners. The basic idea behind mediation clauses is to define a clear and common path to conflict resolution, before any conflict arises and this minimum level of cooperation in the conflict no longer materialises. The aim is to avoid destructive escalations and to find a Basis for constructive negotiations to create. The aim is to utilise the willingness to cooperate at a time in the future when this willingness to cooperate will be put to the test. Mediation clauses create a self-commitment that will have an effect in the future.
The inclusion of mediation clauses in contracts offers the parties the opportunity to find a joint solution to potential conflicts during peaceful times. This not only facilitates subsequent conflict resolution, but also strengthens trust and cooperation between the parties.
Regulatory content of mediation clauses
The regulatory content of mediation clauses can vary and is usually adapted to the specific needs and circumstances of the contracting parties. We will explore this in more detail in further episodes and also look at practical experience with mediation clauses.
Typical components of a mediation clause are
- Commitment to mediation: In the event of differences of opinion or conflicts, the parties undertake to first(!) make use of mediation before taking legal action, so-called dilatory waiver of action.
- Procedure for selecting the mediator: It is determined how the mediator is selected. This can be done through a predetermined list of mediators or through specific criteria for the selection.
- Implementation of the mediation process: The clause may specify how the mediation procedure is to be conducted, including the place, language, rules of procedure and modalities for the assumption of costs.
- Escalation mechanisms: In the event that mediation is not successful, further steps can be defined to resolve the conflict, such as an arbitration agreement.
Effectiveness of mediation clauses
The effectiveness of mediation clauses can be seen in several aspects:
- Preventive conflict resolution: By establishing a clear procedure for conflict resolution, mediation clauses help to deal with conflicts at an early stage and in a structured manner. This can help to quickly clear up misunderstandings and improve cooperation.
- Cost and time savings: By first seeking mediation, the parties can avoid the often high costs and long periods of time involved in court disputes.
- Preservation of the relationship: Mediation processes are designed to create a win-win situation. This promotes the preservation and strengthening of relationships between the parties, which is particularly important in long-term business relationships or partnerships.
- Flexibility and self-determination: Mediation clauses enable the parties to respond to conflicts in a self-determined and flexible manner. They have control over the process and can work together to find solutions that meet their specific needs and interests.
Potential fields of application of mediation clauses
Mediation clauses could offer considerable added value in various areas and contexts, even if they are not yet used across the board in practice.
Below are some areas of application that would be particularly suitable for the implementation of mediation clauses:
- Business contracts and trade agreements:
- Mediation clauses could help to process disputes about contract interpretation, performance obligations or payments efficiently and cost-effectively. In principle, it would be possible for companies to benefit from such amicable dispute resolution, maintain business relationships where desired and avoid lengthy legal disputes. However, all of this would not be ruled out and could be implemented despite the agreement. Mediation clauses in no way absolutely prevent litigation; rather, they provide the opportunity to choose.
- Labour law agreements:
- Mediation clauses in employment contracts or works agreements could help to identify conflicts between employers and employees at an early stage and to outline paths that can then be taken. This could improve the working atmosphere and minimise labour law disputes.
- Property and rental contracts:
- Mediation clauses could be used in rental or lease agreements to resolve disputes about rental conditions, repairs or rent payments by mutual agreement. This would benefit both landlords and tenants and avoid legal disputes. Business and commercial tenancy agreements should be considered here in particular!
- Family law agreements:
- Mediation clauses could be included in marriage contracts or divorce agreements in order to resolve future disputes about maintenance, custody or the division of assets peacefully. This could be particularly helpful in emotionally charged situations and avoid lengthy court proceedings. This is probably where most practical experience has been gained with conflict-anticipating and conflict-preventing mediation clauses.
- Inheritance contracts and inheritance disputes:
- Mediation clauses in inheritance contracts or wills could help to avoid family conflicts over the distribution of the estate. An amicable solution could clarify family relationships at an early stage and prevent cost-intensive „ settlement proceedings in court“.
- Construction and engineering contracts, including IT project contracts:
- Mediation clauses could be useful in construction contracts to resolve conflicts over construction services, schedules or cost increases. Early conflict resolution could avoid construction delays and additional costs. A highly complex matter with very different interests.
- Co-operation and research agreements:
- Mediation clauses could be used in research and development collaborations to resolve conflicts over intellectual property, research results or funding by mutual agreement. This would promote cooperation and avoid lengthy legal disputes.
- Insurance contracts:
- Mediation clauses in insurance contracts could help to resolve disputes about claims settlements, insurance benefits or contract interpretations. This could be beneficial for both insurers and policyholders.
The implementation of mediation clauses in these areas could help to promote early and cost-effective conflict resolution. They would create a constructive climate and make it easier for the parties to reach an amicable solution without having to immediately take legal action.
Overall, mediation clauses are an effective instrument for preventing conflicts and promoting a constructive conflict culture.
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